In Chibeka v R (1959) 1 R and N 476, the Federal Supreme Court counselled

that:

“One must consider the whole of the provocation given and the whole of the
accused’s reaction to it, including the weapon, if any, used, the way it came
to hand, the way it was used, and every other relevant factor, and must
finally decide whether an ordinary man of the accused community – with his
ordinary allowance of human wickedness – might have done what the
accused did.”

Mwiimbe v The People (1986) Z.R. 15.

The appellant was convicted of the murder of her husband and sentenced to
death. She appealed claiming cumulative and immediate provocation on the
basis of the couple’s unhappy marital history. The Supreme Court, in a
judgment delivered by Ngulube, D.C.J., held that evidence of cumulative
provocation in the absence of immediate provocation cannot suffice to
establish the three vital elements of the defence to stand. Wit, the act of
provocation, the loss of self-control, and the appropriate retaliation. But
more importantly, the Supreme Court observed (at page 21), that the
evidence far from suggesting any provocation or any loss of self-control,
indicated that the appellant embarked on a course of action which was
dispassionate and deliberate. And certainly not in the heat of the passion
upon a sudden provocation. Thus on the test laid down in the Liyumbi case
(supra), the defence failed on account of the absence of all the three
elements. It must be stressed that for provocation to reduce murder to
manslaughter, it must be sudden
Makomela v The People (1974) Z.R. 254.
The facts of the case were as follows: the appellant, a headman of a village
was convicted of murder. On a previous occasion, the deceased who was the
appellant’s nephew had stolen some money from the appellant, but he had
not reported the matter to the police because the deceased parents had
warned him that if he did so, the deceased would kill him. On the day the
deceased was killed, the appellant, on returning to his house after an
absence of a few minutes had seen the deceased coming out of it; he warned
the deceased not to enter his house and told him that if his money was
missing, he would hold the deceased responsible. Later, he went into the
house and found the money missing. He went out and called the deceased
and accused him of having taken the money.
The deceased armed himself with a stick and threatened to beat up the
appellant. The appellant ran away, and picked up a gun which was in the
bush. He then called the deceased’s mother and told her that he was going
to kill her son because she had prevented the appellant from taking him to
the police station and he wanted to kill the deceased on account of his
money. The appellant then shot the deceased and went to the police station
and reported the matter.

Baron D.C.J., in delivering the judgment of the Supreme Court observed (at
page 257), that the Supreme Court had difficulty in understanding the basis
on which the trial judge held that the appellant acted under provocation.
Because the evidence seems overwhelming that there was plenty of time for
his passion to cool and that after the provocation was offered he did act with
coolness and deliberation. On this account alone, the Supreme Court found
that there was not room for finding that the appellant acted under stress of
provocation. The Supreme Court went on to observe (at page 258), that it is
important not to overlook that the question is not merely whether an
accused was provoked into losing self-control, but also whether a reasonable
man would have lost his self-control, and having done so would have acted
as the accused did. The Supreme Court held that loss of self control is not
absolute; it is a matter of degree.
Tembo v the People (1972) Z.R.
The facts of the case in the Tembo case (supra) were that the appellant and
the deceased fought during an argument in a bar. And the appellant
stabbed the deceased with a knife. He was convicted of murder. In setting
aside the conviction, the Court of Appeal observed (at page 227), that the
position would have been quite different had the appellant gone away to
fetch the knife. But that was not the situation. And on the facts, the Court
of Appeal posited that a trial Court might not have regarded the retaliation
as excessive to the extent of bringing the matter within the provisions of
section 205 (2) of the Penal Code.

“Malice aforethought shall be deemed to be established by evidence proving

any one or more of the following circumstances;
(b). knowledge that the act or omission causing death will probably cause
the death of or grievous harm to some person, whether such person is
the person actually killed or not……..